Jeremy Walters, by counsel Kevin P. Davis, appeals the April
19, 2017, order of the Circuit Court of Wayne County that
granted summary judgment to Respondent City of Kenova, W.Va.
and Respondent Ray Mossman, the City of Kenova's former
police chief, in petitioner's action for defamation.
Respondent City of Kenova filed a response in support of the
circuit court's order by counsel Perry W. Oxley, Laci B.
Browning, and L.R. Sammons, III. Respondent Ray Mossman also
filed a response in support of the circuit court's order,
by counsel Tyler B. Smith. Petitioner appeals the circuit
court's findings that he could not satisfy the
"falsity" element of a defamation claim and that
Respondent City of Kenova was immune from liability under the
Governmental Tort Claims and Insurance Reform Act, West
Virginia Code § 29-12A-5(a)(12).
Court has considered the parties' briefs and the record
on appeal. The facts and legal arguments are adequately
presented, and the decisional process would not be
significantly aided by oral argument. Upon consideration of
the standard of review, the Court finds no substantial
question of law and no prejudicial error. For these reasons,
a memorandum decision affirming the circuit court's order
is appropriate under Rule 21 of the Rules of Appellate
p.m. on June 2, 2015, police officers from the City of
Kenova's Police Department arrested petitioner for felony
"possession of a controlled substance
(hydrocodone)." Later that same day, Respondent Ray
Mossman ("Mr. Mossman"), then the City of
Kenova's chief of police, authored a post on the
"KenovaPD" Facebook page in which he said five people
had been arrested that day, and one of the five had been
arrested for the unlawful possession of cocaine. Respondents
claim Mr. Mossman did not name any of the arrestees.
Petitioner counters that the post named him as the person
arrested for possession of cocaine, despite the fact that the
police arrested him for possession of hydrocodone. Petitioner
admits that he never saw the post, but claims a friend told
him the post named petitioner and said the police arrested
him for possession of "crack cocaine." However,
because the City of Kenova deleted the post a month after Mr.
Mossman placed it on Facebook; the parties' competing
claims cannot be proved.
hours after petitioner's arrest, petitioner's wife
called Mr. Mossman and told him the Kenova police charged
petitioner with the unlawful possession of hydrocodone.
Around 9:00 p.m. that same evening, Mr. Mossman edited the
Facebook post to say the arrest was for the unlawful
possession of hydrocodone. At the time Mr. Mossman edited the
post, it had 220 "likes."
24, 2015, petitioner published the events of June 2, 2015, on
his own Facebook page. In that post, petitioner gave his name
and stated that the Kenova Police arrested him on June 2,
2015, and that Mr. Mossman thereafter wrongfully claimed the
police charged him with possession of crack cocaine.
1, 2015, a month after petitioner's arrest, a television
reporter interviewed the City of Kenova's new mayor.
Petitioner happened to be at the Kenova City Hall during that
interview. Petitioner approached the reporter and, on camera,
said that the Kenova police arrested him for having his
grandmother's prescription hydrocodone in his car, and
that Mr. Mossman wrongfully posted on Facebook that the
police arrested him for possession of crack cocaine.
Thereafter, petitioner's name and the contents of Mr.
Mossman's June 2, 2015, Facebook post were aired on the
television newscast that included the new mayor's
reporter also interviewed Mr. Mossman on camera. During that
interview, the reporter told Mr. Mossman about
petitioner's comments and asked Mr. Mossman about the
post regarding petitioner's arrest. Mr. Mossman did not
mention petitioner's name, but said, "[I]t was
hydrocodone. It's the same kind of charge, but yeah, it
was a misprint on my part, and I changed it."
The television newscast aired Mr. Mossman's interview
immediately after it aired the new mayor's interview.
Petitioner's charge for unlawful possession of
hydrocodone was still pending at the time.
2, 2015, petitioner shared the internet link to the
television newscast containing the new mayor's and Mr.
Mossman's interviews on his Facebook page. That day or
the next, the "KenovaPD" page was taken down and
all the page's posts, including the one allegedly about
petitioner, were deleted.
unlawful possession of hydrocodone charge was later
dismissed. Then, on December 3, 2015, petitioner posted the
following on his Facebook page:
So since my charges have been dismissed the cops are supposed
to give my grandmothers [sic] meds back to me. . . . Still
haven't gotten it back. They keep giving excuses!!!
It's cool cause every time they do I go cha Ching!!!!
on February 9, 2016, petitioner posted the following on his
Hello, my name is Jeremy Walters. I was arrested for having
my grandmother's meds that I had just picked up from the
pharmacy. The meds were in my glove box, in the bottle,
stapled up in the bag still. I told them I was her Medical
Power of Attorney and they had no interest in seeing the
papers. Mossman posted on Kenova PD Facebook that I was
arrested for crack cocaine. My charges have been dropped. . .
20, 2016, petitioner filed this defamation case against
respondents. Petitioner alleged that Mr. Mossman's post
damaged his reputation because it wrongfully reported the
Kenova police arrested petitioner for the unlawful possession
of crack cocaine. In his complaint, petitioner alleged that
more than 5, 000 people "liked" the "Kenova
PD" page, and that those in the area would have seen ...